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Thomas v. Commissioner of Labor

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


January 29, 2009

IN THE MATTER OF THE CLAIM OF CALVIN L. THOMAS, APPELLANT.
v.
COMMISSIONER OF LABOR, RESPONDENT.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: December 18, 2008

Before: Mercure, J.P., Peters, Rose, Lahtinen and Kavanagh, JJ.

MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 15, 2007, which ruled that claimant was ineligible to receive unemployment insurance benefits because he was not totally unemployed.

Substantial evidence supports the Unemployment Insurance Appeal Board's determination that claimant, the sole principal of a subchapter S corporation that he had formed to further his employment as a computer programmer, was ineligible to receive unemployment insurance benefits on the basis that he was not totally unemployed (see Matter of DeAngelo [Commissioner of Labor], 54 AD3d 468, 468 [2008]). The law is settled that "a principal of a corporation will not be considered totally unemployed even if the activities he or she performs on its behalf are minimal, so long as he or she stands to benefit financially from its continued operation" (Matter of Spielman [Commissioner of Labor], 42 AD3d 621, 622 [2007]). Here, claimant had an active corporate checking account, maintained a Web site for the corporation where he periodically checked for e-mails regarding work opportunities and filed corporate tax returns including business expense deductions. In view of the foregoing, claimant stood to gain financially from his activities on behalf of his corporation (see Matter of Marcus [Commissioner of Labor], 47 AD3d 1180, 1180-1181 [2008]).

To the extent not specifically addressed herein, claimant's remaining contentions have been considered and found to be without merit.

Mercure, J.P., Peters, Rose, Lahtinen and Kavanagh, JJ., concur.

ORDERED that the decision is affirmed, without costs.

20090129

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